Ferrara Fiorenza P.C.
 

New Guidance on What Documents Must Be Disclosed to the Public Prior to Open Meetings

In the January edition of our newsletter, we reported on a new amendment to the Open Meetings Law.  As discussed in that article, Section 103(e) of the Public Officers Law now contains two requirements.  First, upon request, any document subject to disclosure under the Freedom of Information Law (“FOIL”), as well as any resolution, law, rule, regulation, or policy scheduled to be discussed at an open meeting, must be made available, to the extent practicable, prior to or at the meeting.  Second, documents scheduled to be discussed at an open meeting must be posted on the school district’s website to the extent practicable, prior to the meeting at which they will be discussed.  School districts must comply with this second requirement regardless of whether a request has been made for the documents. 

Earlier this month, the Committee on Open Government released guidance regarding the application of this new law, which is available at http://www.dos.state.ny.us/coog/QA-2-12.html.  That guidance attempts to answer questions that have arisen to date, and highlights the flexibility districts possess in complying with the statute. 

The information provided by the Committee affirms what the statute makes clear:  Section 103(e) does not expand the scope of documents that are available to the public.  Documents exempt from disclosure under FOIL, such as inter- or intra-agency materials that consist of advice, opinion, recommendation, and the like, do not have to be released prior to meetings.  Additionally, documents that are properly discussed in executive session need not be disclosed under the new law. 

Many questions have arisen regarding the phrase “to the extent practicable.”  Unfortunately, the Committee does not provide any concrete answers regarding what is or is not practicable.  Instead, the guidance document notes that the extent, manner, and timing of disclosure must be based on a “reasonable and ‘practicable’” evaluation of the attendant facts and circumstances.  For example, if a record scheduled to be discussed at a board meeting does not become available until a half hour before the meeting, it is unlikely that the district would run afoul of the statute if it did not post the record on its website prior to the meeting. 

What is apparent, then, is that school districts will be required to make independent determinations as to what is “practicable.”  This is perhaps most apparent with respect to the timing of required disclosures.  The statute is silent as to when materials scheduled to be discussed at an open meeting must be posted to a school district’s website, except that they must be posted prior to the meeting.  The legislature rejected proposed language from the Committee on Open Government which would have required government agencies to upload such information at least 24 hours before such a meeting.  Consequently, a district will likely be in compliance with the statute if it makes documents available to the public the morning of a board meeting.  However, willfully delaying the availability of materials in an effort to obscure an open meeting is clearly contrary to the stated purpose of the law as enacted. 

Thus, although the law provides school boards with flexibility and does not broaden the scope of documents which must be disclosed, it also codifies a strong public policy in favor of transparency.  In concert with this, our office advocates a common sense approach to disclosure.  School boards should carefully consider which documents are important to withhold and determine whether those documents can lawfully be withheld under Section 103(e).  If materials scheduled to be discussed at an upcoming board meeting do not contain information which is sensitive, or if there is no applicable exemption under which they can be withheld, the information should be made available in a manner consistent with the statute. 

In the same vein, districts should not wait until the eleventh hour to disclose documents that must be made public.  It is important to remember that the intent of the law is to afford community members the opportunity for meaningful participation in open meetings.  School districts can ensure both compliance and confidentiality by reviewing and, if necessary, redacting documents in a timely fashion, and making such materials available at a time sufficient to ensure public access prior to the meeting. 

Discerning what to disclose and when to disclose it under the new law will require an assessment of the individual documents, as well as the circumstances under which they will be discussed.  If you have any questions regarding such matters, please feel free to contact our office for assistance.